In our last installment, we discussed what happens during a professional or trade license investigation. What is the Professional Disciplinary Hearing like, though?
Often, after investigation, complaints are dismissed or the credential holder and regulator can agree to particular disciplinary and non-disciplinary outcomes. Most investigations that do not end in dismissal do end up with an agreed-to outcome, which in most cases makes sense—agreements provide finality and eliminate the risk, uncertainty, and cost of a contested proceeding. Sometimes, however, the disciplinary authority does not make such an offer, or the offer is unacceptable to the credential holder.
At that point, a formal complaint will be issued and the matter can proceed to a hearing. Exactly what happens can vary between the different professions, but there are some general procedures.
For instance, a hearing officer will be appointed to decide the case. In cases involving lawyers, that person will be a referee—usually an experienced lawyer or retired judge, who is appointed by the Supreme Court but is not an employee of the Court or the Office of Lawyer Regulation; referees take cases from time to time but do not work full time as referees. For the dozens of professions regulated by the Department of Safety and Professional Services (DSPS) as well as other state boards, that person is an administrative law judge (ALJ), who is a regular employee of the State of Wisconsin Division of Hearings & Appeals who hears these cases for a living. The role of the hearing officer is similar, regardless of title—they conduct hearings and make recommendations to the ultimate decision makers.
Before the hearing, the parties will often have a telephone conference with the referee or ALJ, who will set some parameters for the hearing. The hearing officer may also allow time for discovery—that is, depositions, document requests, or written questions that one side may send to the other—and may set guidelines and deadlines for motions.
Sometimes, prior to a hearing, the parties can continue to negotiate and they come to a resolution. Cases before the DSPS can be resolved entirely through agreements even after a hearing is set. For attorneys, however, it may be a little different—even if the parties come to an agreement the referee may need to make a decision as to whether the agreement is appropriate, and then send a recommendation to the Supreme Court.
“Motions” are requests that either side can make for a variety of reasons—to expand or limit discovery; to exclude certain evidence from the hearing; or to change deadlines.
Assuming negotiations do not result in a resolution, a hearing will be held. Most DSPS hearings are held in Madison at the state office building on Madison Yards Way, though it may be possible to hold a hearing at a regional office. Attorney disciplinary hearings are held in the county where the attorney practices, unless otherwise agreed to by the parties. Hearings may last anywhere between a few hours and several days (attorney hearings tend to be longer). Each side has the opportunity to present witnesses, documents, and other evidence supporting their position and refuting the other side’s position. In disciplinary hearings, with few exceptions, the regulator has the burden of proof to show that the credential holder committed wrongdoing; the professional does not need to prove they acted correctly. These proceedings are a bit like court trials, only they are less formal and some of the rules of evidence do not apply. For instance, hearsay evidence may be allowed, though the hearing officer doesn’t need to give it great weight. A court reporter or tape recording will create a record of the hearing. Depending on the preferences of the hearing officer and the parties, along with the procedures of each particular regulator, there may be opening statements and/or closing statements.
After the hearing is over, the hearing officer may ask for written briefs summarizing the evidence and the arguments of the parties. After that, the officer will prepare his or her recommendations for discipline, or for dismissal if they do not believe the regulators met their burden. How long this report will take may vary—most agencies suggest a guideline of 30 days following receipt of briefing, or receipt of the hearing transcript if there is no hearing, but the referees and ALJs do not always follow that guideline.
The recommendation is not final. An ALJ report from a DSPS matter will be submitted to the particular Board that regulates the subject individual, and each parties will have the opportunity to respond in writing to the recommendations. The Board makes the ultimate decision, which may be appealed to a circuit court. A referee report for a lawyer is submitted to the Supreme Court; if either the Office of Lawyer Regulation or the lawyer does not like the recommendation, they can appeal it and the Supreme Court will take new briefs and arguments. Ultimately, the Supreme Court will make a decision and there is no higher court to which to appeal.
Next time, we will discuss the kinds of discipline that can be imposed by a Board or the Supreme Court against a professional license. Stay tuned!
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Stacie H. Rosenzweig is an attorney with Halling & Cayo S.C. She focuses her practice on litigation, licensing and professional responsibility defense, and employment law. She has additional experience in administrative proceedings and navigating the state and municipal licensing systems.